State v. Gonzalez

609 A.2d 1003, 222 Conn. 718, 1992 Conn. LEXIS 215
CourtSupreme Court of Connecticut
DecidedJuly 7, 1992
Docket14401
StatusPublished
Cited by25 cases

This text of 609 A.2d 1003 (State v. Gonzalez) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Gonzalez, 609 A.2d 1003, 222 Conn. 718, 1992 Conn. LEXIS 215 (Colo. 1992).

Opinions

Callahan, J.

The defendant, Jose J. Gonzalez, was charged in a substitute information with the crimes of attempted murder in violation of General Statutes §§ 53a-49 and 53a-54a (a),1 assault in the first degree [720]*720in violation of General Statutes § 53a-59 (a) (1), carrying a pistol without a permit in violation of General Statutes §§ 29-35 and 29-37 (b), and having a weapon in a motor vehicle in violation of General Statutes § 29-38. The trial court granted the defendant’s motion for acquittal on the second count of the information charging assault in the first degree. A jury convicted the defendant of the remaining three counts. The trial court thereafter rendered judgment in accordance with the verdict and sentenced the defendant to a term of imprisonment of twenty years, suspended after fourteen years, and probation for a period of five years on the conviction of attempted murder. The trial court also imposed concurrent terms of four years each on the convictions of carrying a pistol without a permit and having a weapon in a motor vehicle.

The defendant appealed to the Appellate Court claiming that the trial court improperly: (1) failed to investigate or inquire into an allegation of possible juror misconduct; (2) charged the jury concerning the [721]*721attempt element of the crime of attempted murder; and (3) denied the defendant’s motion for judgment of acquittal on the basis that the evidence produced was insufficient to support his convictions.

The Appellate Court determined that there was an inadequate factual record to decide the issue of juror misconduct and remanded the case to the trial court for a hearing to ascertain whether there had, in fact, been juror misconduct and, if so, whether the defendant had been prejudiced.2 State v. Gonzalez, 25 Conn. App. 433, 436-40, 596 A.2d 443 (1991). The Appellate Court also concluded that there had been sufficient evidence produced at the defendant’s trial to sustain his convictions; id., 443-45; and that the trial court had properly instructed the jury concerning the attempt element of attempted murder. Id., 440-43.

The defendant thereafter petitioned this court for certification. We granted certification limited to the following question: “Did the Appellate Court properly conclude that the trial court properly instructed the jury on attempt liability under General Statutes § 53a-49 (a) (1)?” State v. Gonzalez, 220 Conn. 928, 598 A.2d 1099 (1991).

We conclude that the Appellate Court was incorrect when it determined that the trial court had properly instructed the jury on attempt liability pursuant to § 53a-49 (a) (1). The jury, in light of the evidence, should have been instructed on attempt liability pursuant to § 53a-49 (a) (2). Because, however, any impropriety in the trial court’s instructions concerning attempt liabil[722]*722ity was rendered harmless by other portions of the court’s charge, we affirm the Appellate Court’s judgment.

The facts leading to the defendant’s arrest and conviction are set forth in considerable detail in the Appellate Court’s opinion. State v. Gonzalez, supra, 25 Conn. App. 435-36. For present purposes, suffice it to say that the jury found that the defendant was involved in an altercation with the victim over a traffic incident and shot the victim in the throat with a .25 caliber handgun. The bullet entered the victim’s neck under his chin and lodged behind his left ear. The victim was hospitalized for two to four days and suffered a permanent loss of feeling in the left side of his neck.

The substitute long form information that charged the defendant with attempted murder did not specify upon which subdivision of § 53a-49 (a) the defendant’s culpability was predicated. The trial court, tracking the information, initially instructed the jury by referring to the entire text of § 53a-49 (a), thereby indicating to the jury the applicability of both subdivisions (a) (1) and (2) to the charge of attempted murder.3

During its subsequent deliberations, the jury requested that it be reinstructed as to the definition of attempted murder. The trial court, in responding, first read the statutory definition of murder and explained the element of intent. The court then discussed the requirements necessary for a jury to find that there had been an attempt pursuant to § 53a-49 (a) (1). Next, when the court began to instruct [723]*723the jury on the requirements for the finding of an attempt pursuant to § 53a-49 (a) (2) the following colloquy ensued:

“The Court: This second part of the attempt statute provides that a person is guilty of attempting to commit a crime if, acting with the kind of mental state required for the commission of the crime, he intentionally does or omits to do anything which, under the circumstances as he believed them to be, is an act or omission constituting a substantial step in the course of conduct planned to culminate in his commission of the crime. It’s charged that way. But I don’t think that section applies very well. It says to do with a plan, carrying out, steps.

“Assistant State’s Attorney: I’m satisfied.

“The Court: I think if you just limit your consideration to the first part as I’ve given it to you, you’ll have to determine whether the state has met its obligation there. The distinction is that, in this section, it’s talking about an act or omission in carrying out a plan to culminate in the commission of the crime of murder. This has more to do with those individual, itemized factors which I have given to you previously. And I think if you look at them, you would disregard them as being in this case. That’s lying in wait, enticing. That’s not in this case.

“The question here is whether—if this gentleman was at the scene and was involved in the conflict, your question is whether or not he, at that moment, was armed. Knowing that he was and that he knowingly and intentionally pulled out a gun and shot the victim with the intent to take the victim’s life, the fact that it wasn’t accomplished is the basis of the attempt to commit murder. Okay? You may resume.”

The defendant did not object to the trial court’s supplemental instructions. He argued on appeal to the [724]*724Appellate Court, however, that his constitutional rights had been violated because the trial court’s supplemental instructions removed from the jury’s consideration subdivision (a) (2) of § 53a-49, which was, in reality, the only subdivision of the statute that had application to the facts of his case. He argues that, consequently, he was convicted of having committed an attempted murder pursuant to a subdivision, subdivision (a) (1) of § 53a-49, for which there was no evidentiary foundation.4 State v. Gonzalez, supra, 25 Conn. App. 440-41.

We agree with the defendant that the trial court incorrectly focused the jury’s consideration on whether the defendant had committed an attempt pursuant to § 53a-49 (a) (1).

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Cite This Page — Counsel Stack

Bluebook (online)
609 A.2d 1003, 222 Conn. 718, 1992 Conn. LEXIS 215, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gonzalez-conn-1992.